the occasion of taking out the writ. The statement has no bearing on the site the building may have occupied at any other date, earlier or later. Hart traced his title through a sale on justice's execution. The judgment on which the execution issued was rendered by one Charles Campbell, a justice of the peace in the city of Lansing, in favor of Orlando Button and against Richard Elliott, and the sale was made to Button by a constable. named Rogers. Hart bought of Button. The proceedings. on the execution being offered in evidence, and it appearing that the certificate of the levy and the notice of sale each referred to a building on lot eight of block six instead of one on lot seven, as in the writ of replevin, the evidence was. objected to on account of this difference. The constable was then allowed against objection to identify the property now in question as the same he sold on the execution. The objection went upon the theory that the site spoken of in the action was an inherent part of the description and a permanent mark of the property. Of course the assump tion was fallacious. The building being a mere chattel was liable to be shifted about from one lot to another, and at the time of the objection it had not been shown that no move had taken place subsequent to the levy and sale. On the contrary there was ground for inference that a change had occurred. According to Hart's testimony given afterwards. the statement in the levy and notice that the building was on lot eight was a mistake. It was on lot seven. But there was no mistake in regard to the building. The same erection which was levied on and sold to Button and by him transferred to Hart is the same sued for and described in this case. The parol testimony to identify it was not incomplete. Borland v. Stewart 4 Wend. 568; Jackson ex dem. Hunter v. Page id. 585. Had the property been a horse which the officer had mentioned as being in stall number 8 when in fact he was in the adjoining stall number 7, no one, I imagine, would have supposed the mistake to be fatal or to be not explainable by parol. The facts here are no more favorable to the plaintiff in error. In filling up the blank execution the justice by an evident mistake neglected to insert the name of the county, and it did not contain the name of any township or city. Parol evidence was admitted to prove that the execution was issued on the proper judgment and emanated from the justice who gave the judgment, and that the levy and sale were made pursuant to it. The execution was objected to as invalid and the parol testimony as incompetent. The writ was not void. It was issued on a lawful judgment by the proper officer and in due time, and was made returnable within sixty days. It described the judgment and required the officer to collect it. The only material defect was the omission of the name of the county, and this was a clerical irregularity apparent on the face of the writ, and which in the case of a justice's execution, and as against a stranger to it resisting the claim of a purchaser under it, was curable by parol evidence. Perkins v. Spaulding 2 Mich. 157; Stewart v. Stocker 13 S. & R. 199; Lewis v. Avery 8 Vt. 289; Morgan v. Evans 72 Ill. 586; Blaine v. The Ship Charles Carter 4 Cranch 328; Webster v. Farley 6 Blackf. 163; Lessee of Matthews v. Thompson 3 Ohio 272; Douglas v. McCoy 5 Ohio 523; Phelps v. Ball 1 Johns. Cas. 31; Inman v. Griswold 1 Cow. 199; Ross v. Luther 4 Cow. 158; Porter v. Goodman 1 Cow. 413; M'Intyre v. Rowan 3 Johns. 144; People v. Dunning 1 Wend. 16; Stone v. Martin 2 Den. 185; Dominick v. Eacker 3 Barb. 17; Park v. Church 5 How. Pr. 381; Pierce v. Alsop 3 Barb. Ch. 184; Averill v. Wilson 4 Barb. 180; Berry v. Riley 2 Barb. 307; Peck v. Tiffany 2 Comst. 451; Bacon v. Cropsey 3 Seld. 195; Holmes v. Williams 3 Cai. 98; Lyon v. Fish 20 Ohio 100. How the case might stand in a direct controversy between the parties to the execution is a question which does not arise. The contest here is between one holding under the execution sale and one deriving title by a purchase from the execution debtor prior to the levy. The execution defendant has made no objection to the execution, and if he does not see fit to complain of the irregularity, there seems to be no ground under the authorities, of which several are cited, on which the plaintiff in error could be heard to do so. The jury negatived her title, and her position on the record is that of one holding without right and opposing Hart's title on the ground of an irregularity in the execution which is part of his title, and of which irregularity the execution debtor is not minded to complain. What has been said disposes of the case. There is nothing to warrant interference with the judgment and it must be affirmed with costs. The other Justices concurred. CALVIN GOODSPEED, IMPLEADED WITH GEORGE W. FALES V. Partnership note after dissolution-Action for debt for which a note was given. A firm dissolved after ordering a lot of merchandise, but it was all forwarded before the assignors knew of the dissolution, and after they learned of it, they took a note, made in the firm name by the remaining partner, for the amount due. They afterwards brought suit against both partners on the common counts, and on the note. Held (1), that the retiring partner could not be held upon the note against his objection, as after the dissolution the other could not bind him; but (2) that an action on the common count for,goods sold and delivered would lie against both for the debt. Where a firm agreed to settle for merchandise with a note, and after dis- Error to Ingham. Submitted Nov. 10. Decided Jan. 12. 45 237 113 490 Cowles & Cahill for defendant in error. The incapacity of a partner to give the firm note after dissolution exists only where it would be making a new contract: Story on Partnership & 328; Jenness v. Carleton 40 Mich. 343; and if the note is invalid action, lies for the debt. Adler v. Foster 39 Mich. 87. GRAVES, J. The Plow Company sued Fales & Goodspeed on the common counts and on a promissory note bearing date May 1st, 1879, subscribed "Fales and Goodspeed," and purporting to have been made by them to the Company for $281.37, payable September 1st after the date at the "Lansing National Bank," with exchange on New York or Chicago, and providing for interest at ten per cent per annum after maturity and "attorney fees," and "waiving all relief whatever from valuation or appraisement laws." Goodspeed pleaded the general issue and denied under oath that the note was executed by him or on his authority. Fales seems to have made no defence. The jury found in favor of the Company for $219, and Goodspeed brought error. From some time prior to January 20, 1879, until the 13th of February following, Fales and Goodspeed were co-partners under the firm name of "Fales & Goodspeed," and carried on business at Lansing. On said 20th of January Fales, in the firm name, made a written order on the Company for a quantity of plows to be delivered on board cars at South Bend. The order contained special terms. One of the provisions was in these words: "We agree to make settlement with four months' note, without interest until after maturity, made payable at Bank of Lansing, on receipt of your monthly statement: provided we do not take the benefit of your cash discount, in which case we agree to remit by the 15th of the month following the shipment." The order was accepted and the Company made four shipments; two in January and two in March, amounting to $281.37. Goodspeed had no personal knowledge of the order or of the shipments. February 13, 1879, the firm dissolved. The Company first learned of the dissolution in March, but not until after the shipments. In June following, an agent of the Company received from Fales, who subscribed it, the note before mentioned, on the account for the plows. The agent, on taking the note, receipted and surrendered to Fales a statement of the account. The circuit judge was of opinion that recovery upon the note was not allowable against objection on the part of Goodspeed, and this view was a correct one. According to the record, when Fales gave the note he had no power to bind Goodspeed and make him liable as maker. The agency necessary therefor ceased when the dissolution was effected. Moreover the note given was in substance not identical with the note provided for by the legal meaning of the firm agreement. The Company by that agreement could not insist upon. ten per cent. as the rate of interest to be inserted nor on a provision for exchange on New York or Chicago. His objection against recovery on the note having been sustained, the plaintiff in error then urged that as the account was given up and the note taken with knowledge of the dissolution and of the facts, the account became cancelled and no recovery could be had on that. This view was presented in requests for instructions, but the court rejected it and told the jury that if they were satisfied the goods were shipped in pursuance of the order before the dissolution of the partnership was known to the Company, they ought to allow for the goods so shipped. The verdict was for the agreed price of the plows delivered, less a certain sum which had been paid. It is now insisted that it was practicable for the Company to give up the account for a note taken in satisfaction of it, and that this was done without intervention of any fraud or misunderstanding; and that, although the note was given by Fales in the firm name without authority and was repudiated by Goodspeed, its reception and the delivery of a copy of the account receipted were sufficient to release Goodspeed from all liability and preclude recovery on the account. It is impossible to assent to this position. The controversy in all its parts is between the original parties. No new interest has appeared, and it is part of Goodspeed's contention that |